Guest Opinion: Why Westport Middle School was closed, and why the new school proposal is a good deal

Wednesday

Jan 31, 2018 at 8:30 PM

Dianne M. Baron

Questions have been raised about the recent court decision in Town of Westport v. Monsanto. They are questions raised with the intent to cast doubt on whether the middle school building is contaminated with toxic substances and presents an unreasonable risk of injury to health.

We will have a public forum on Saturday, Feb. 10, at 10 a.m. at the Westport Library where we will answer any questions about the school building project.

When PCBs were found in the middle school building in the spring of 2011, the EPA made it clear that the Town of Westport was required under federal law to offer a plan that would 1) completely eliminate the caulk and all other manufactured materials contaminated with PCBs, and 2) require quarterly monitoring to make sure that all surfaces and air quality were not contaminated with PCBs beyond EPA regulated levels (50 ppm).

On Sept. 23, 2013, the firm of CGKV Architects, Cambridge, released its 184-page report: “Feasibility Study for the Ongoing Use of the Westport Middle School.” This report is available on the WSBC.com website and the Westport Community Schools website.

Among other things, the report found:

1. The $3.2 million 2011 remediation efforts made in the summer of 2011 were merely a stopgap measure to allow students to attend the middle school within a very restricted timeframe while a permanent solution was sought.

2. A permanent solution involving total remediation and renovation of the school would be extremely costly, estimated in 2013 at $43.6 million. The cost for remediation today would cost between $52 million and $64 million.

3. The report estimated that to build a new school in 2013 would cost $38.5 million and that the cost to abate and demolish the existing structure would be between $5 million and $5.5 million.

Given those facts, further remediation in 2013 did not make sense. It would be throwing good money after bad.

After reviewing this report, the superintendent and School Committee made the logical decision to close the middle school in September 2015 out of concern for the health of the students and staff who were there every day. They then sought help from the MSBA to craft a permanent solution for Westport students.

Why does the court seem to say something different? Judge Sandra Lynch’s decision states that the case against Monsanto was based upon an obligation to have foreseen health dangers created by their PCB-infused caulk in 1969 when the building was constructed, and that the case cannot succeed because Westport did not introduce evidence that the PCB-infused caulk created any health dangers at the middle school.

First, this opinion and the case itself deal only with the caulking material. They do not deal with other potential sources of PCB threats to health such as the mastic between the ceiling tiles and concrete ceilings, the paint on the tiles, and other contaminants, all of which are present in the middle school.

Related and more important, they do not deal with the fact that PCB secondary sites were found on all of the surfaces in the building, demonstrating that there was some sort of source that had volatilized and spread the PCBs to those surfaces.

Congress banned most uses of PCBs through the Toxic Substances Control Act (TSCA) and gave the EPA power to establish and enforce regulations. Under EPA regulations, the use of PCBs in building materials like caulk at levels of 50 ppm (parts per million) or above is an “unauthorized use.” According to EPA regulation 40 CFR Section 761.20, PCB items with PCB concentrations of 50 ppm or greater present an unreasonable risk of injury to health within the U.S. Westport Middle School contains numerous building materials with PCBs present at levels greater than 50 ppm.

This all highlights what every lawyer knows from her training and own experience: that results of cases are all situation relative — dependent upon the specific issues in play, the evidence presented in that case, and the advocacy of the parties, among other factors.

More important, whatever the result in the Monsanto case, there is absolutely no question that the existence of the PCB containing materials in the building constitutes a violation of the EPA regulations. Any product which contains over 50 ppm exceeds this standard, and there were many areas tested that far exceeded this standard. One test showed 270,000 ppm (27 percent) of PCBs.

As part of the MSBA feasibility study process, our project management team has conducted further studies on the middle school site to confirm the extent of remediation necessary when demolishing the middle school, testing not only inside the building but also the PCBs in the soil surrounding the building. We are confident that we will be able to clean up the site and meet all EPA guidelines and regulations with our projected budget of $4.8 million for this phase of the project.

Our presentation at Town Meeting demonstrated that the most cost effective solution is the construction of a new 5-12 middle-high school. We have examined this issue for almost three years and looked at three building sites, five grade configurations and 24 building options. The MSBA has approved our solution and is willing to contribute 40 percent of the entire cost of our project — more than $38 million. The town will pay $58.9 million, not $100 million.

This is a good deal. It will only get more expensive if we wait.

Dianne M. Baron is chair of the Westport School Building Committee.

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